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Justinian I · The Digest of Justinian §8.3.27.pr

Merger or Survival of Servitudes on Co-Purchase of Land

Passage 1436 of 9271 · Latin

Summary

This section explains the conditions for the extinguishment or survival of a servitude due to merger (confusio) in relation to common and sole estates, comparing two different cases where the servient estate is purchased in common.

[IULIANUS libro septimo digestorum. ] §8.3.27.prSi communi fundo meo et tuo seruiat fundus Sempronianus et eundem in commune redemerimus, seruitus extinguitur, quia par utriusque domini ius in utroque fundo esse incipit.
[JULIANUS, Digest, Book 7] If the Sempronian estate owes a servitude to an estate owned in common by you and me, and we purchase the same estate in common, the servitude is extinguished, because the right of each owner begins to be equal in both estates.
at si proprio meo fundo et proprio tuo idem seruiat, manebit seruitus, quia proprio fundo per communem seruitus deberi potest.
But if the same estate owes a servitude to my own sole estate and to your own sole estate, the servitude will remain, because a servitude can be owed to a sole estate through a common estate.

Notes

  1. 8.3.27.prin commune redemerimus — Although redimere originally means 'to buy back', here it means simply 'to purchase' or 'to acquire'. The phrase in commune means 'in common' or 'as joint property', referring to the joint acquisition by you and me.
  2. 8.3.27.prper communem — communem is the accusative singular (masculine/feminine) of the two-termination adjective communis (common), agreeing with the omitted masculine noun fundum (estate). It means 'through the common estate' (the servient estate which has become common). Since a co-owner of a common estate can owe a servitude through that common estate to an estate owned solely by another, the servitude survives.

Cite this passage

Justinian I, The Digest of Justinian §8.3.27.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:8.3.27.pr

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